Octopus Deploy Customer Agreement
Effective starting September 1, 2019
This customer agreement (“Agreement”) is a legal agreement between you and Octopus Deploy Pty Ltd ABN 69 160 339 186 (“Octopus Deploy”, “our”, “we” or “us”), an Australian company (together the “parties” and each a “party”). If you are agreeing to this Agreement not as an individual but on behalf of your company, then a reference to “you” or “Customer” in this Agreement is a reference to the company, and the company will be bound by this Agreement. We may modify the terms of this Agreement from time to time subject to Section 17 (Changes to this Agreement) below.
By clicking on the “I agree” (or similar button or checkbox) that is presented to you at the time of your Order or when subscribing for one of our services, or by using or accessing our Products, you agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, you must immediately uninstall or cease using the Products.
1. Grant and Scope of Agreement
(a) our commercially available downloadable software products (“Software”), currently designated as “Server” deployments;
(b) our cloud-hosted online services, currently designated as “Octopus Cloud” (“Cloud Services”),
(together with any related documentation, the Products), and
(c) any related support or maintenance services provided by us (“Support Services”).
1.2. Rights. You have no rights in, or to, any Product or Support Service other than the rights granted under this Agreement.
1.3. Software and Cloud Services. Section 3 (Software Terms) applies specifically to Software. Section 4 (Cloud Services Terms) applies specifically to Cloud Services. All other terms of this Agreement apply to all Products unless otherwise specified.
1.4. Affiliates. Your affiliates shall be entitled to make full use of the Products in accordance with the terms of this Agreement to the same extent as if they were you. For purposes of this Agreement, “Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.
2. Accounts, Orders, Targets, Payments, and Refunds
2.1. Account Registration. You must register an Account with us at our website in order to place Orders, receive license keys, and manage access to the Software or Cloud Services. Your account information must be kept accurate and complete. You must keep your account information current, so that we may send notices, statements, and other information to you by email or through your Account. You are responsible for all actions taken through your Account, including Orders and Subscriptions made.
2.2. Orders. You create an Order by following the purchase or subscription flows on our website, or by requesting an invoice from us. Your Order will name the Product you are purchasing, any limits on the number of Targets you will be able to manage, and the License Term or Subscription Term. All Orders are intent only and are not binding (on you or on us) until payment is received in full by us and processed, and access to the corresponding Product is delivered. In the case of a monthly subscription to Octopus Cloud with, a new Order is raised automatically at the end of each billing period unless you cancel your subscription.
2.3. Targets. Our Software is licensed, and / or our Cloud Services are provided, according to the number of targets you can manage. A “Target” is typically a server (or cloud service) that you use the Products to deploy software to. A Target may be a cloud-hosted Platform-as-a-Service target, or a physical or virtual machine that Octopus communicates with using the Secure Shell (SSH) protocol or running the Octopus Tentacle agent software. Targets are defined in the Documentation. Some types of Targets may count as more than one Target towards your limit as defined in the Documentation.
2.4. Refund policy. You may terminate your initial Order of the applicable Software or Cloud Services under this Agreement, for no reason or any reason, by providing notice of termination. At your request (which may be made through your Account or by contacting us), we may disable the license key that allowed the Software to operate or disable access to the Cloud Services.
For Software or Cloud Services Orders, we will refund your payment in full if you request a refund within 30 days of the payment of your Order. After 30 days, we will refund your payment pro-rata for the number of months remaining on the term of the Order. For example, if you pay for a 12-month License Term or Subscription Term and request a refund at month 5, we will refund the remaining 7 months.
3. Software Terms
3.1. Grant of License. Under the terms of this Agreement, we grant you a worldwide, non-exclusive, fully paid, non-transferable license to install and use the Software for your own business purposes, during the applicable License Term.
3.2. License Delivery. To activate and use the Software, you will be required to provide a license key. License keys will be delivered electronically to your Account and via email when payment has been received as per your Order.
3.3. License Term and Renewals. Your license to use the Software is granted for a specific time period (License Term). Your License Term may be extended for additional periods of time by placing a new Order to renew the License Term. Unless you have selected the “auto-renewal” option in your account, any renewals of the License Term must be mutually agreed upon by the parties in writing. All renewals are subject to the applicable Software continuing to be offered. The renewal price will be the then-current prices as shown on our website and are subject to change from time to time.
Your Order will indicate:
(a) a period of time for the License Term (12 months unless specified otherwise); and/or,
(b) a specific begin and end date for the License Term.
If a begin and end date are not indicated, the begin date of the License Term will be the date that we receive and process your payment for the applicable Order, at which time the license key will be delivered to you as per Section 3.2 (License Delivery).
Upon the expiry of your License Term plus a 60-day grace period, functionality in the Software will be limited, and you will not be able to use the Software to deploy applications.
3.4. Support, Maintenance and New Releases. During the License Term you will have access, free of charge, to all updates, upgrades, new releases and patches for the Software that we release during the License Term, along with technical support. You acknowledge and agree that we may, but are under no obligation to, release any update, upgrade or patch at any time or for any reason.
3.5. Number of Instances. For each License that you purchase, you may install and use up to three (3) active “Instances” of the Software. An Instance means a running copy of the Octopus Deploy Software that has its own database. Instances are counted whether installed on the same physical or virtual server, or on different servers.
Instances may be used for production usage, disaster recovery, development or other purposes. Each Instance may have an unlimited number of Nodes to provide availability and redundancy.
Your Order specifies the maximum number of Targets you may register in each Instance individually, even if you run multiple Instances concurrently.
3.6. Third Party Code and Open Source Libraries Used. The Software includes code and libraries licensed to us by third parties, including open source software. To the extent applicable, we shall identify open source software included in the Software in or through the Software itself, or on a page in our documentation. Some of these licenses require us to provide the open source software to you on the terms of the open source license instead of the terms of the Agreement. In that case, the terms of the open source license will apply, and you will have the rights granted in such licenses to the open source software itself, such as access to source code, right to make modifications, and right to reverse engineer. Notwithstanding the foregoing, if you are using the Products in the form provided to you, in accordance with your permitted scope of use, with no distribution of software to third parties, then none of these open source licenses impose any obligations on you beyond what is stated in the Agreement.
4. Cloud Services Terms
4.1. Access to Cloud Services. Subject to your acceptance and continued compliance with the terms of this Agreement, we grant you a non-exclusive right to access and use the Cloud Services, during the applicable Subscription Term. You acknowledge that the Cloud Services are online, subscription-based products hosted and managed by us, which may change from time to time.
4.2. Subscription Term & Renewals. Your Order will specify the term during which you will have access to the Cloud Services (Subscription Term). Unless noted otherwise on your Order, all subscriptions will automatically renew for periods equal to your initial Subscription Term unless you cancel your subscription. If you cancel or decide to terminate your subscription, we will refund any remaining term on your subscription as per Section 2.4 (Refund Policy). You acknowledge that your subscription is subject to automatic renewals and you consent to and accept responsibility for all related recurring charges to your applicable payment method without further authorization from you and without further notice unless required by law. You acknowledge that the amount of the recurring charge may change if the applicable tax rates change, or if there has been a change in the applicable fees (for which, if applicable, you will be given at least 90 days’ notice before such change takes effect).
4.3. Target Limits and Billing. The price for your Subscription will calculated with one of the following methods:
(a) based on a fixed number of maximum Targets that you can deploy to; or,
(b) with variable billing based on the number of Targets at the end of the billing period,
as chosen by you when setting up the Subscription or Order.
If you choose option (b), you acknowledge that your bill may vary each billing period, subject to any increase or decrease by you of the number of Targets in that billing period. To avoid any unpleasant surprises, you can limit the maximum number of targets by configuring a cap in your Octopus Account.
4.4. Fair Usage. Your usage of the Cloud Services is governed by our Acceptable Usage Policy.
4.5. Security of Your Data. We implement and maintain security measures to help protect the Cloud Services and Your Data from security attacks. However, you acknowledge and agree that as a consequence of the inherent nature of the Cloud Services, Your Data will often be transported over networks that are not owned or operated by us, and that we are not responsible for any of Your Data that is lost, intercepted, altered or stored across such networks, except to the extent caused by our negligence or intentional misconduct. You acknowledge that we are unable to guarantee complete security or confidentiality of Your Data or guarantee that third parties will never be able to defeat our security measures or those of our third-party service providers. We are General Data Protection Regulation (GDPR) compliant: if we discover or are made aware that any of Your Data has been intercepted, we will follow the GDPR reporting guidelines if the intercepted data may have contained any personally identifiable information.
4.6. Termination, removal and suspension. We may remove Your Data from the Cloud Services, or suspend your access to the services, if we deem such action necessary based on your violation of this Agreement or our Acceptable Use Policy. We will provide thirty (30) days’ notice and provide reasonable opportunity for you to correct your breach prior to removing Your Data, but we may also suspend your access immediately without notice if we deem it necessary to protect the Cloud Services, security of other customers or to comply with any law or regulation. We have no liability to you for removing or deleting Your Data from or suspending your access to any Cloud Services if you violate this Agreement, our Acceptable Use Policy or any law or regulation.
4.7. Static IP Addresses. Your Order may include a static IP address (Static IP). We may on rare occasions need to change the Static IP you have been provided. In such cases we will do our best to give you at least 30 days’ notice so you can prepare for the change.
5. Your Data
5.1. Meaning of Your Data. In this Agreement, “Your Data” means any data, applications, configuration settings, content, code, images or material of any type that you upload, submit or otherwise provide us or to our Products for any purpose.
5.2. Ownership of Your Data. You are responsible for Your Data. You will retain all right, title and interest in and to Your Data. Subject to the terms of this Agreement, you grant us a worldwide, non-exclusive, royalty-free right to collect, use, transfer and store Your Data solely for the purposes of providing any Product to you or to respond to your support requests.
5.3. Confidentiality of Your Data. We may receive or have access to information (including but not limited to documents, data, technical information, methods and processes, computer programs and scripts, reports, manuals) owned or controlled by you which is proprietary or confidential (confidential information). This happens in various ways, not limited to: when you store them in the Products, or when you include them in a support request that is not marked “public” by you. We agree:
(a) that all such information shall be and shall remain your exclusive property;
(b) to limit access to such information to only our authorized employees, contractors, and agents, and including any of our Affiliates under Section 11 (Transfer of Ownership) (collectively, our “Staff”), who have a need to know such information in the performance of their work;
(c) to inform all of our Staff engaged in handling such information of the confidential character of such information;
(d) to keep, and have our Staff keep, such information confidential;
(e) not to copy, publish, or disclose such information to others or authorize others to copy, publish, disclose such information without your written approval;
(f) to return promptly any copies of such information to owner at your request;
(g) to use such information solely for purposes of fulfilling work or services performed hereunder and for other purposes only upon such terms as may be agreed upon between us in writing; and
(h) that, in the event any of the information is required to be produced pursuant to a subpoena, court order, valid legal or administrative process, or other operation of law, we shall notify you of such potential disclosure in order that you may take appropriate action at your own expense to limit or prevent such disclosure, and furnish only that portion of Your Data that has been legally compelled.
Confidential information shall not include information which:
(i) was known to us before disclosure as evidenced by bona fide written documents;
(j) is or becomes publicly known through no wrongful act of ours;
(k) is independently developed by us;
(l) is disclosed to us by a third party without breach of any obligations of confidentiality.
5.4. Nature of Your Data. You must ensure that Your Data is at all times compliant with our Acceptable Usage Policy and all appropriate laws and regulations. You warrant that you have the rights and permissions to provide Your Data to us, and that your transfer of Your Data to use does not violate any laws, regulations or the rights of third parties.
5.5. Personally Identifiable Information. You will not submit to us any personally identifiable information (except as necessary for your Authorized Users to use and access a Product). You will not submit to us any patient, medical or other protected health information regulated by any relevant laws in any country.
5.6. Liability. For the avoidance of all doubt, Octopus Deploy assumes no responsibility or liability for Your Data other than described in this Section 5, and you shall be solely responsible for Your Data and the consequences of you using, storing, disclosing or transmitting it. We have no obligation to monitor any of Your Data uploaded to the service.
5.7. Deletion of Your Data. We may remove or delete Your Data 90 days after the termination of your relevant Subscription Term, or upon your request.
5.8. Processing of Your Data. We will perform processing actions as part of monitoring and running the Cloud Services and as part of the Support Services.
Except as otherwise permitted in this Agreement, or by us in writing, you will not:
(a) intentionally use any Product in any way that could damage our reputation; or
(b) rent, lease, sub-license, loan, translate, merge, adapt, vary or modify any Product, without our express written consent.
7. Termination of Agreement
7.1. Termination. Either party may terminate this Agreement (or an Order) without cause on ninety (90) days’ notice in writing. In addition, either party may terminate this Agreement or any Order if the other party breaches this Agreement in any material respect and fails to cure the breach, if capable of cure, within thirty (30) days after receiving written notice from the other party specifying the nature of the breach. Termination of an individual Order shall not operate to terminate any other then-outstanding Orders between the parties.
7.2. Obligations on Termination. On termination of this Agreement, or on termination or expiry of any relevant Order (unless you retain a right to continue using a Product after the end of that Order, e.g., due to another valid Order for that Product, or having a license licensed under a prior “Perpetual” licensing model) you must immediately cease use of, and destroy, any and all copies of any Software, and you acknowledge that you will lose access to any Cloud Services.
7.3. Survival. The following Sections will survive any termination or expiration of this Agreement: 6 (Restrictions), 5.3 (Confidentiality of Your Data), 8.4 (Warranty Disclaimer), 10 (IP Indemnification by Octopus Deploy) (but solely with respect to claims arising from your use of the Software during the License Term), and 12 (Export).
8.1. General Warranties. We warrant that:
(a) we have the legal power and authority to enter into this agreement with you;
(b) during the License Term or Subscription Term as appropriate (“Warranty Period”), the Products will, when properly used, perform substantially as described, provided that the Product is (i) properly used on the computer and with the operating system and software environment for which it was designed; and, (ii) is used in accordance with our documentation which we may provide you or publish on our website from time to time.
We do not warrant that the Products are error free, will operate in an uninterrupted manner, will not damage or interfere with your computer operating system and will not damage or interfere with your business or the business of third parties.
8.2. Virus Warranty. We represent and warrant that we will take reasonable commercial efforts to ensure that the Products, in the form and when provided to you, will be free of any viruses, malware, trojans or other harmful code. For any breach of the foregoing warranty, your sole and exclusive remedy, and our sole obligation, is to fix or replace the Products promptly upon notice.
8.3. Remedies during Warranty Period. If, within the Warranty Period, a Product fails to perform as described due to a defect or fault (that is not the result of you having modified the Product without our prior knowledge or authorization or used it in contravention of the terms of this Agreement or outside its ordinary operating requirements), we will, at our sole option, repair or replace the Product, provided that you:
(a) notify us in writing of the defect or fault in the Product within the Warranty Period; and
(b) make available all the information that may be necessary to assist us in resolving the defect or fault, including sufficient information to enable us to recreate the defect or fault.
8.4. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1 (GENERAL WARRANTIES) AND 8.2 (VIRUS WARRANTY), ALL SOFTWARE, SUPPORT AND MAINTENANCE AND ANY ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND OCTOPUS DEPLOY AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. OCTOPUS DEPLOY WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF OCTOPUS DEPLOY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER OCTOPUS DEPLOY NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY SOFTWARE OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE SOFTWARE WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE SOFTWARE (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SOFTWARE) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ERRORS OR DEFECTS WILL BE CORRECTED; OR (E) EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.2 (VIRUS WARRANTY), THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU MAY HAVE OTHER STATUTORY RIGHTS, IN WHICH CASE: (F) THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW; (G) YOUR ENTITLEMENT TO RELIEF IS LIMITED TO THOSE FORMS OF RELIEF REQUIRED BY STATUTE; AND (H) TO THE EXTENT PERMITTED BY LAW, THE FORM OF ANY RELIEF SHALL BE AT OUR DISCRETION.
9.1. Exclusions to Liability. Neither party (nor their suppliers or Affiliates) will have any liability (whether in contract, tort, strict liability or otherwise) arising out of or related to this agreement for:
(a) any loss of profits, business, contracts, anticipated savings, goodwill, or revenue;
(b) any loss, or corruption, of software or data;
(c) any loss or use of hardware, software or data; or
(d) any other indirect, special or consequential loss or damage whatsoever, even if the party has been advised in advance of the possibility of such loss or damage.
9.2. Your Representations. You acknowledge and agree that:
(a) the Products have not been developed to meet your individual requirements;
(b) it is your responsibility to ensure that the facilities and functions of the Products meets your requirements;
(c) you have made your own independent enquiries and have satisfied yourself of the nature and adequacy of our Products for the purpose for which you have obtained the Products.
(d) the existence of any minor errors shall not constitute a breach of this Agreement; and
(e) the provisions of Section 8 (Warranty), Section 9 (Liability) and Section 10 (IP Indemnification by Octopus Deploy) are reasonable and reflected in the price, which would be much higher without those provisions, and you accept such risk.
9.3. Liability Cap. Except to the extent that any law or regulation provides otherwise, our maximum aggregate liability under or in connection with this Agreement whether in contract, tort (including negligence), or otherwise is limited to the purchase price you paid for the Product, and any renewal fees, received by Octopus Deploy in the twelve (12) months prior to the event giving rise to the liability.
10. IP Indemnification by Octopus Deploy
If any claim is brought, or you reasonably anticipate that a claim may be brought, against you alleging that your use of the intellectual property associated with the Products infringes a patent right granted in the United States, United Kingdom, Australia or a member nation of the European Union or a copyright registered in such a jurisdiction (a “claim”):
(a) you shall promptly provide us written notice of the claim (but in any event notice in sufficient time for us to respond without prejudice);
(b) the two of us shall consult together on an appropriate course of action and shall seek to minimize the effect of any claim on each other’s businesses;
(c) we shall have the right, but not the obligation, to take control of all negotiations and litigation arising out of the claim;
(d) we will pay any damages and costs awarded against you in connection with any claim, however we are not and you agree not to hold us responsible or liable for any damages, costs, or expenses suffered or incurred by or awarded against you:
(i) prior to your providing notice of the claim of under Section 10 (a);
(ii) arising out of any act or omission by you or any of your Affiliates in respect of the claim without our prior and express written consent, including any admission or concession; or
(iii) to the extent that any act or omission by you or any of your Affiliates in the course of your or their use of the Product caused or contributed to the infringement of the rights of the third party;
(e) we shall have the right, at our sole choice, either:
(i) to negotiate terms for continued use by you of the claimed infringing Product;
(ii) amend the Product to make it non-infringing; or
(iii) terminate this Agreement with immediate effect and in such event, we shall refund to you the purchase price that you paid and any renewal fees pro rated from the date of termination of this Agreement to the date which, had this Agreement not been terminated, would be the end of your License Term or Subscription Term,
(f) our indemnification obligations in Section 10 DO NOT APPLY if:
(i) the total aggregate fees received by Octopus Deploy from you, in the twelve (12) month period immediately preceding the claim, is less than USD $50,000; or
(ii) you settle or make any admissions with respect to a claim without our prior written consent.
THIS SECTION 10 STATES OUR SOLE LIABILITY AND OBLIGATIONS AND IS YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY PRODUCTS SUPPLIED BY OCTOPUS DEPLOY UNDER THIS AGREEMENT.
11. Transfer of Rights and Obligations
You may not assign or transfer this Agreement without our prior written consent. As an exception to the foregoing, you may assign this Agreement in its entirety (including all Orders) to your successor resulting from your merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under this Agreement (including liability for past performance). Any attempt by you to transfer or assign this Agreement except as expressly authorized above will be null and void.
We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. We may also permit our affiliates, agents and contractors to exercise our rights or perform our obligations under this Agreement, in which case we will remain responsible for their compliance with this Agreement. Subject to the foregoing, this Agreement will inure to the parties’ permitted successors and assigns.
You represent and warrant that you are not in violation of and will not violate any export control laws, regulations or directives in the United States, Australia, the United Kingdom, or in your own country or region (if applicable) by entering into or in the performance of your rights or obligations under this Agreement.
We may identify you as a customer in our promotional materials. We will promptly stop doing so upon your request via email sent to email@example.com.
Any notice under this Agreement must be given in writing.
We may provide notice to you via email. You agree that any such electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Our notices to you will be deemed given upon the first business day after we send it.
You will provide notice to us by post to:
Octopus Deploy Pty. Ltd., Level 4, 199 Grey St, South Brisbane, QLD 4101, Australia
Your notices to us will be deemed given upon our receipt.
Either party’s failure to insist upon strict performance of any obligations under this Agreement, or the failure to exercise any of the rights or remedies to which either party is entitled under this Agreement, does not constitute a waiver of such rights or remedies and shall not relieve either party from compliance with such obligations.
Our waiver of any default shall not constitute a waiver of any subsequent default.
A waiver of any of these terms and conditions shall not be effective unless it is expressly stated to be a waiver and is communicated to the other party in writing.
If any of the terms of this Agreement are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
17. Changes to this Agreement
17.1. Notice for changes. We may modify the terms and conditions of this Agreement from time to time, with notice given to you by email, through the Software or through our website. Together with notice, we will specify the effective date of the modifications.
17.2. Effective Date of Changes. If we make modifications to this agreement, the modifications will take effect at the next renewal of your License Term or Subscription Term, and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section 3.3 (License Term and Renewals). In some cases – e.g., to address compliance with Laws, or as necessary for new features – we may specify that such modifications become effective during your then-current License or Subscription Term. If the effective date of such modifications is during your then-current License or Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund to you any fees you have pre-paid for use of the affected Software for the terminated portion of the applicable License Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of this Agreement in effect at the time of the Order.
18. Entire Agreement
This Agreement constitutes the whole of the agreement between the parties. You agree that you have not relied on any statement, representation, assurance or warranty made by any person (including a third party) in entering into this Agreement. This Agreement supersedes all prior or contemporaneous oral or written communications, proposals and representations between you and Octopus Deploy with respect to the Products or any other subject matter covered by this Agreement.
19. Force Majeure
Neither party is responsible or liable for any omission or delay under this Agreement where the omission or delay is caused by an event beyond the reasonable control of any party, including, but not limited to, act of God, natural disaster, war or invasion, terrorism or act of a public enemy, strikes and industrial disputes, embargo, prohibition, confiscation, act of government authority, or failure of telecommunications or data networks or services.
20. Law and Jurisdiction
Where either party may have a dispute or claim against the other party, each party:
(a) agrees that the Agreement shall be interpreted in accordance with the applicable laws of the State of California, USA, without reference to its conflict of laws principles from time to time;
(b) submits to the exclusive jurisdiction and venue of San Francisco, California, USA, and courts of appellate jurisdiction; and
(c) consents to the enforcement of any judgment of the courts of San Francisco, California, USA (and appellate courts) in any other jurisdiction.
In this Agreement, unless the context otherwise requires:
21.1. A reference to the singular includes the plural and the plural includes the singular.
21.2. A reference to any contract (including this Agreement) or other instrument includes any variation or replacement of it and as it may be assigned or novated.
21.3. A reference to a law includes subordinate legislation (including regulations) and other instruments under it and any amendment or replacement of any of them.
21.4. A reference to a person or entity includes an individual, a firm, a body corporate, a trust, an unincorporated association or an authority.
21.5. A reference to a person includes their legal personal representatives (including executors), administrators, successors, substitutes (including by way of novation) and permitted assigns.
21.6. A reference to a day or a month means a calendar day or calendar month.
21.7. No party enters into this Agreement as agent for any other person (or otherwise on their behalf or for their benefit).
21.8. The meaning of any general language is not restricted by any accompanying example, and the words “includes”, “including”, “such as”, “for example” or similar words are not words of limitation.
21.9. Headings and the table of contents are for convenience only and do not form part of this Agreement or affect its interpretation.
21.10. Where there are two or more persons in a party each are bound jointly and severally.